Citation Nr: 0121440
Decision Date: 08/23/01 Archive Date: 08/29/01
DOCKET NO. 95-20 388 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for a
shell fragment wound with injury to the 5th cranial nerve
(SFW).
2. Entitlement to an increased (compensable) evaluation for
traumatic arthritis of the temporomandibular joint (TMJ).
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
chronic low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
C. Dillon, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1952 to
November 1953.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from a December 1994 rating decision from
the Department of Veterans Affairs (VA) Regional Office (RO)
located in Atlanta, Georgia. In that decision, the RO
determined that increased evaluations for TMJ and SFW
disabilities were unwarranted. The RO also determined new
and material evidence to reopen the claim of entitlement to
service connection for a low back disability had not been
submitted.
This case was initially before the Board in April 1997, at
which time the Board issued a remand order, wherein all three
issues currently on appeal before the Board were remanded for
additional development. The RO has fully complied with the
remand order, and the case has since been returned to the
Board for further appellate review.
The issue of new and material evidence sufficient to reopen a
claim of entitlement to service connection for a low back
disability is addressed in the remand portion of this
decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran's service-connected TMJ demonstrates a degree
of motion and loss of masticatory function consistent with
no more than a moderate displacement of a malunioned
mandible, and joint articulation, as demonstrated by
inter-incisal range, is no less than 31 millimeters.
3. The veteran's service-connected TMJ cannot be rated as
degenerative arthritis because any traumatic arthritis he
may have experienced is not established by X-ray findings.
4. The veteran's service-connected SFW demonstrates a degree
of sensory manifestation or motor loss consistent with
incomplete and moderate paralysis.
CONCLUSIONS OF LAW
1. The criteria for an increased (compensable) evaluation for
TMJ have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 2001); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2,
4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.150, Diagnostic Codes
(DC) 5003, 9904, 9905 (2000).
2. The criteria for an evaluation in excess of 10 percent for
SFW have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 2001); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2,
4.3, 4.7, 4.124a, DC 8205 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The veteran is currently service-connected for post-traumatic
stress disorder (PTSD) at 30 percent disabling, SFW at 10
percent disabling, and tinnitus at 10 percent disabling, for
a combined service connection disability of 40 percent,
effective June 19, 1996.
The veteran served on active duty from February 1952 to
November 1953. Service records establish the veteran
sustained, among other things, right-sided head injuries
related to a shell fragment explosion while he was engaged in
combat during the Korean conflict.
In March 1954, the RO issued a rating decision granting
entitlement to service connection for SFW and TMJ. These
disabilities were assigned a 10 percent evaluation and a
noncompensable evaluation, respectively, each effective
February 20, 1953, the date of discharge from active service.
Based on a two-week admission in a VA hospital from December
1977 to December 1978, the veteran filed a claim for
increased evaluations of his service-connected disabilities.
The RO affirmed the 10 percent evaluation of SFW and the
noncompensable evaluation of TMJ, noting that the records of
his hospitalization indicated treatment solely for
nonservice-connected disabilities.
In May 1994, the veteran again requested an increased
evaluation of his service-connected head wounds, among other
things. The claims for an increased evaluation provided the
names of additional treatment sources and listed additional
symptomatology not previously alleged, such as headaches.
VA conducted a "muscle"/orthopedic examination in June
1994. The veteran complained of an occasional burning
sensation on the right side of his face and an occasional
pain in his right TMJ. While he reported that he avoids
excessive use of his jaw, he also reported that he is able to
chew his food without difficulty. Although there was
considerable tenderness over the right TMJ, the examiner also
noted no evidence of tendon damage or adhesion. A loss of
sharp sensation was noted over the right side of the face,
but he was able to smile without difficulty and showed no
muscular paralysis; both sides of the face were symmetrical.
Bilateral X-rays of the TMJ revealed no abnormalities.
Diagnoses included residual shell fragment wound with 5th
cranial nerve injury, right, and traumatic arthritis, right
temporomandibular joint, minimal.
In December 1994, the RO issued a rating decision, which,
among other things, again denied entitlement to an increased
evaluation of the veteran's service-connected SFW and TMJ.
The 10 percent and noncompensable evaluations, respectively,
were continued.
In January 1995, the veteran filed a notice of disagreement
with the December 1994 rating decision, stating that he had
no feeling on the right side of his face, and that his jaw
"pops" with each movement.
Prior to the Board's receipt of the claims currently on
appeal, the veteran and his representative attended a
personal hearing in June 1996 before a hearing officer at the
RO. He testified that the right side of his face was
"totally numb," with complete inability to chew on that
side. He stated that he experiences sharp,"awful" pains
for which he has only received aspirin as treatment. Further
testimony disclosed a reported popping sensation when
chewing, but there has never been an occasion when his jaw
was dislocated from such activity. In reference to his jaw-
related disabilities, his spouse added, "he complains about
that all the time."
In April 1997, the Board remanded, in pertinent part, the
claims for increased evaluations of SFW and TMJ. The primary
purpose of the remand order was to arrange VA examinations by
neurological and orthopedic specialists, who would provide
more detailed analyses of the veteran's current condition, in
comparison to the prior VA examination.
VA conducted a cranial nerve examination in August 1997.
Numbness in the right V3 distribution was found, but the
veteran displayed no V1 or V2 involvement, and his corneal
reflex was considered normal. Jaw weakness was noted with
the pterygoid and mastoid muscles related to the 5th cranial
nerve, in that he could not deviate his jaw to the right
effectively.
A VA dental examination was also conducted in August 1997,
which included findings pertinent to the claims at issue.
Objective findings revealed pain at the right TMJ only during
palpation. No deviation on mouth opening was noted, with
inter-incisal opening of greater than 40 millimeters (mm).
No popping, clicking, muscle spasm, or crepitus on opening or
closing were found, and there was no notable speech
interference. Positive findings included difficulty chewing
on the right side (due to numbness) and inability to sleep on
the right side (due to jaw pain). Pertinent diagnoses were
right TMJ pain and paresthesia of the right trigeminal nerve.
VA-ordered supplemental testing in November 1997 indicated
electromyelogram (EMG) and nerve conduction studies (NCS)
consistent with injury to the motor branch of the right
trigeminal nerve with intact ophthalmic sensory branch.
In August 1999, an independent neurological medical
evaluation was conducted. After a thorough examination, the
specialist's diagnostic impression disclosed the primary
source of pain and paresthesias to be arthritis and
dysfunction of the TMJ. The examiner expressly ruled out the
5th cranial nerve as the source of the veteran's pain and
dysfunction. On examination, there was no atrophy of the jaw
muscles, he was able to move his jaw from side to side
without obvious unilateral weakness, and facial movement was
intact. Although the veteran could hear clicking in the
region of the right jaw joint, the examiner could not hear
any crepitus.
In September 1999, examination by an oral/maxillofacial
surgical associate was performed. Mandibular opening of 46
mm without deviation was recorded. 10 mm of lateral
excursion to the left and 11 mm of lateral excursion to the
right were noted. 10 mm of protrusive movement was also
noted, and remaining dentition was in good repair. Although
TMJ and right-sided paresthesia were confirmed diagnoses, it
did not appear to the examiner that there was any functional
impairment, including any masticatory dysfunction.
In May 2001, a neurological evaluation was conducted.
Examination showed minimal right facial asymmetry, with a
pain component during smiling. The right TMJ was painful to
palpation, and decreased muscle contraction on the right side
was noted. The examiner opined there was persistent pain in
the face, particularly at the right TMJ, with some findings
suggestive of right trigeminal nerve dysfunction at the third
division.
VA medical records dated within approximately the last seven
years reveal treatment for a variety of diagnosed disorders
entirely unrelated to the current claims, such as diabetes
mellitus, PTSD, hypertension, renal calculi, hand numbness,
and obesity.
Criteria for Increased Evaluation
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Schedule),
38 C.F.R. Part 4 (2000).
The percentage ratings contained in the Schedule represent,
as far as can be practicably determined, the average
impairment in earning capacity resulting from diseases and
injuries incurred or aggravated during military service and
the residual conditions in civil occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2,
which require the evaluation of the complete medical history
of the veteran's condition.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will
be resolved in the appellant's favor. 38 C.F.R. § 4.3.
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings, nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20 (2000).
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (2000).
In considering the residuals of injury, it is essential to
trace the medical-industrial history of the disabled person
from the original injury, considering the nature of the
injury and the attendant circumstances, and the requirements
for, and the effect of, treatment over past periods, and the
course of the recovery to date. 38 C.F.R.
§ 4.41.
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with 38
C.F.R. § 4.25. However, the evaluation of the same
"disability" or the same "manifestations" under various
diagnoses is prohibited. 38 C.F.R. § 4.14 (2000).
The United States Court of Appeals for Veterans Claims
(Court) has held that a claimant may not be compensated twice
for the same symptomatology as "such a result would
overcompensate the claimant for the actual impairment of his
earning capacity." Brady v. Brown, 4 Vet. App. 203, 206
(1993). This would result in pyramiding, contrary to the
provisions of 38 C.F.R. § 4.14.
The Court has acknowledged, however, that when a veteran has
separate and distinct manifestations attributable to the same
injury, he should be compensated under different diagnostic
codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v.
Brown, 4Vet. App. 225 (1993).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to pain supported by
adequate pathology and evidenced by visible behavior of the
claimant undertaking the motion. 38 C.F.R. § 4.40.
The factors of disability affecting joints are reduction of
normal excursion of movements in different planes, weakened
movement, excess fatigability, swelling and pain on movement.
38 C.F.R. § 4.45.
The Court has held that when a diagnostic code provides for
compensation based solely upon limitation of motion, the
provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain on use or due to flare-ups. See
DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10,
4.40, 4.45, 4.59.
With any form of arthritis, painful motion is an important
factor of disability. The intent of the rating schedule is
to recognize painful motion with joint or periarticular
pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint. The joints should
be tested for pain on both active and passive motion, in
weight-bearing and nonweight-bearing and, if possible, with
the range of the opposite undamaged joint. 38 C.F.R. § 4.59.
Traumatic arthritis, confirmed by X-ray, is rated as
degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DC
5010 (2000). Degenerative arthritis established by X-ray
findings will be rated on the basis of limitation of motion
under the appropriate diagnostic codes involved under 38
C.F.R. § 4.71a. 38 C.F.R. § 4.71a, DC 5003 (2000).
When however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added under DC
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion, a 20 percent evaluation is warranted with X-ray
evidence of involvement of two or more major joints or two or
more minor joint groups with occasional incapacitating
exacerbations. A 10 percent evaluation is warranted with X-
ray evidence of involvement of 2 or more major joints or 2 or
more minor joint groups. The 20 percent and 10 percent
ratings based on X-ray findings, above, will not be combined
with ratings based on limitation of motion. Id.
The Court held in Hicks v. Brown, 8 Vet. App. 417 (1995),
that once degenerative arthritis is established by X-ray
evidence, there are three circumstances under which
compensation may be available for service-connected
degenerative changes:
(1) where limitation of motion of a joint or joints is
objectively confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of painful
motion, and that limitation of motion meets the criteria
in the diagnostic code or codes applicable to the joint
or joints involved, the corresponding rating under the
code or codes will be assigned;
(2) where the objectively confirmed limitation of motion
is not of a sufficient degree to warrant a compensable
rating under the code or codes applicable to the joint
or joints involved, a rating of 10 percent will be
applied for each major joint or group of joints
affected, "to be combined, not added"; and
(3) where there is no limitation of motion, a rating of
10 percent or 20 percent, depending upon the degree of
incapacity, may still be assigned if there is x-ray
evidence of the involvement of 2 or more major joints or
2 or more minor joint groups.
Read together, DC 5003 and 38 C.F.R. § 4.59 thus state that
painful motion of a major joint or groups caused by
degenerative arthritis, where arthritis is established by X-
ray, is deemed to be limited motion and entitled to a minimum
10 percent rating per joint, combined under DC 5003, even
though there is no actual limitation of motion. Lichtenfels
v. Derwinski, 1 Vet. App. 484, 488 (1991); VAOPGCPREC 9-98
(holding that a separate rating for arthritis could be based
on X-ray findings and painful motion under 38 C.F.R. § 4.59).
Duty to Assist
There have been changes in the law during the pendency of
this appeal. Karnas v. Derwinski, 1 Vet. App. 308 (1991)
(where a law or regulation changes after the claim has been
filed or reopened and before the administrative or judicial
process has been concluded, the version more favorable to the
veteran applies).
On November 9, 2000, the President signed into law the VCAA
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
Among other things, this law redefines the obligations of VA
with respect to the duty to assist. The Board, however, is
satisfied that all relevant facts pertaining to the issues on
appeal have been properly developed, and that no further
assistance is required in order to satisfy the duty to assist
provisions as mandated by VCAA. 38 U.S.C.A. § 5103A (West
Supp. 2001).
All relevant evidence necessary for an equitable resolution
of the claims has been identified and obtained. A review of
the record shows that the RO has obtained treatment records
at various VA facilities, and the veteran has not identified
any other evidence that may be relevant to his current
claims.
As to whether any further VA examinations are appropriate,
the Board finds that they are not. These matters were
initially before the Board in April 1997, at which time the
Board remanded the increased evaluation claims for
development consistent with its order, which included
specialized VA examinations. The results of these
examinations have since been associated with the claims file
and adequately present the current level of disability, such
that reexamination is not required. Glover v. West, 185 F.3d
1328 (Fed. Cir. 1999); Snuffer v. Gober, 10 Vet. App. 400
(1997); VAOPGCPREC 11-95. The Board therefore concludes
that VA can provide no further assistance that would aid in
substantiating the claims.
In addition, the Board finds that the veteran has been
notified of the evidence necessary to complete his claims for
increased evaluations. The RO informed the veteran of the
evidence needed to support his claim via the December 1994
rating decision, which was then appealed to the Board.
Further notice included the March 1995 statement of the case,
as well as the October 1996 and April 2001 supplemental
statements of the case. These documents have informed the
veteran of the substance of the requirements for entitlement
to the claimed increases and the rationale for not awarding
the increases.
The Board also notes that the veteran has an accredited
representative and that such representative has reviewed the
claims file and provided written argument as recently as
August 2001 regarding the issues on appeal.
In view of the foregoing, the Board finds that the veteran
will not be prejudiced by its actions, and that a remand for
adjudication of his claims by the RO under VCAA would only
serve to further delay resolution of his claim. See Bernard
v. Brown, 4 Vet. App. 384, 392-94 (1993).
Specific Criteria and
Analysis of TMJ
After a careful review of the record, the Board finds that a
preponderance of the evidence demonstrates that a compensable
rating for TMJ is not warranted.
Under DC 9904, malunion of the mandible with severe
displacement warrants a 20 percent evaluation, with moderate
displacement warranting a 10 percent evaluation, and with
slight displacement warranting a noncompensable evaluation.
Those ratings are dependent upon degree of motion and
relative loss of masticatory function. 38 C.F.R. § 4.150.
The competent evidence of record reflects no more than a
slight level of present TMJ displacement. In June 1994, the
veteran stated he could chew without difficulty, and
diagnostic impression was minimal TMJ. In August 1997, jaw
weakness was noted, but only to the extent the veteran could
not deviate his jaw to the right side effectively, consistent
with only a slight degree of loss of motion.
Moreover, the veteran's jaw weakness was considered related
to the 5th cranial nerve, a separately service-connected
disability currently compensated, discussed infra. See
Esteban, supra. Dental examination the same month revealed
pain as the only positive finding for TMJ. No popping,
clicking, mouth deviation, spasm, etc., were noted. There
was difficulty chewing, but this was considered by the dental
examiner to be due to numbness, and this is consistent with
the diagnoses, which included paresthesia of the right
trigeminal nerve.
Ruling out the effects of 5th cranial nerve involvement, the
August 1999 neurological examiner opined that the primary
source of mandibular dysfunction, including pain and
paresthesia, was TMJ. The Board, however, accords minimal
probative value to this opinion because it is both internally
inconsistent as well as inconsistent with the other competent
evidence of record. First, the neurological examiner found
virtually no objective findings of TMJ (consistent with
majority of examiners).
Second, he neither conducted nor reviewed advanced studies,
such as EMGs or NCSs. EMG and NCS results from November
1997, however, are in fact positive for right-sided nerve
damage. Discussed in the next section of this decision, a
residual injury to the 5th cranial nerve, right side, has
been service-connected at a compensable degree since 1954,
and this is wholly inconsistent with the neurological
examiner's opinion.
Temporomandibular articulation is evaluated under the
provisions of DC 9905. Limited motion of the inter-incisal
range from 31 to 40 mm warrants a 10 percent evaluation; from
21 to 30 mm warrants a 20 percent evaluation; from 11 to 20
mm warrants a 30 percent evaluation; and from 0 to 10 mm
warrants a 40 percent evaluation. Limited motion of the
range of lateral excursion from 0 to 4 mm warrants a 10
percent evaluation. Ratings for limited inter-incisal
movement shall not be combined with ratings for limited
lateral excursion. Id.
In August 1997, the dental examiner found no deviation of
mouth opening, with inter-incisal mouth opening in excess of
40 mm. Again in a September 1999 examination, the veteran
demonstrated no compensable limitation. Mandibular opening
(inter-incisal) was recorded as 46 mm, and lateral excursion
was well over 4 mm, at 10 mm on the left and 11 mm on the
right.
The Board has also considered the veteran's TMJ under
traumatic arthritis, DC 5003. 38 C.F.R. § 4.71a, DC 5010.
Although he is service-connected for TMJ specifically
described as "traumatic arthritis of the TMJ," service
connection was established many years ago without
confirmation by X-ray.
Additionally, the current jaw X-rays of record are within
normal limits. Therefore, although he may be service-
connected for traumatic arthritis, it cannot be rated as
degenerative arthritis under DC 5003. See Hicks, supra.
Initially, it would appear that the requirements of DeLuca,
supra, (analysis of functional loss due to pain) would appear
inapplicable, given the additional requirement of masticatory
dysfunction in adjudicating TMJ evaluations. However, in a
case similar to the present, the Board erred in only
evaluating a veteran's left mandible condition under 38
C.F.R. § 4.150, DCs 9904 and 9905. On appeal, the Court
observed that under 38 C.F.R. §§ 4.40 and 4.45, VA was
directed to consider pain in assessing functional loss. In
that case, the record was replete with references to pain,
the treatment for that pain, and the increasing difficulties
in devising a treatment plan for that pain. Floyd v. Brown,
9 Vet. App. 88 (1996).
In this case, the veteran has consistently complained of
right-sided jaw pain to examiners. During the adjudicative
period at issue, he initially reported in June 1994
occasional TMJ pain and an occasional right-sided burning
sensation. At the time of his June 1996 RO hearing, he was
reporting sharp pain, and a popping sensation, with complete
inability to chew on the right side. By 1997, he was
reporting an inability to sleep due to jaw pain, and this
pain was considered persistent by September 1999.
The veteran is competent to report observations of his own
pain. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In the present case, the probative value of these complaints,
however, are minimal at best, and although some level of pain
is recognized, it is not at the level averred because other
competent evidence of record indicates otherwise. For
instance, in August 1997, TMJ pain was present only during
palpation. He has told most examiners that treatment for
pain has included nothing more than aspirin. In August 1999,
the veteran said he could hear clicking sounds in the right
jaw joint, but during that same examination, the examiner
indicated he could not hear any such sounds. While the
latter example does not address pain, it does reflect his
propensity to exaggerate his signs or symptoms.
Based on the examinations of record, the extent of functional
loss due to pain on use or due to flare-ups is minimal to
none. DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45. The veteran
has never asserted and the record does not suggest that he
experiences flare-ups of increased TMJ pain. At the very
most, the competent and probative evidence shows a
persistent, low-level pain sensitive to palpation; the August
1997 dental examination and May 2001 neurological examination
support such an assessment.
Moreover, TMJ pain sensation has resulted in little to no
functional loss, and the medical opinion attributing most of
the pain to the diagnosis of TMJ was deemed lacking in
comparable probative weight. Examinations since 1994 have
noted the ability to smile without difficulty and chew with
minimal to no difficulty, and there is no evidence of speech
impairment whatsoever. Mouth movements, as detailed above in
the VA dental examination, show hardly any loss of range of
motion, regardless of pain. The September 1999 examiner in
particular expressly noted there was no apparent functional
loss of any kind.
The Board has also considered the nature of TMJ and the
requirements for, and the effect(s) of, treatment over past
periods, and the course of the recovery to date. In this
regard, the Board has carefully reviewed the medical-
industrial history of the veteran from the original in-
service combat injury that caused his service-connected
right-sided head wounds. 38 C.F.R. § 4.41.
The veteran's history not only substantiates against a
current increase but further supports that there has been no
discernible increase in severity since the initial grant of
entitlement to service connection. After his 1954 grant of
entitlement to service connection for TMJ (noncompensable)
through the most recent treatment records in the claims file,
there has been virtually no mention, let alone treatment, of
jaw-related issues. Even when he filed his claim for an
increase of TMJ following hospitalization in 1977 and 1978,
records of that admission indicated treatment for unrelated
conditions.
Submissions of VA treatment throughout the 1990s are silent
for complaints of jaw problems, despite comprehensive
treatment for numerous other complaints. The only time the
issue of TMJ is raised in the record (in a medical context)
is in connection with his pending claim for a compensable
increase. Industrially, there are references throughout the
record of a long and productive post-service career
reportedly limited only by back pain.
As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath, supra. In this
case, the Board finds no other provision upon which to assign
a higher rating.
Based upon a full review of the record, the Board finds that
the evidence is not so evenly balanced as to require
application of the benefit of the doubt in favor of the
veteran's claim. Gilbert v. Derwinski, 1 Vet. App. 49, 56
(1990). Accordingly, the Board finds that the criteria have
not been met for a compensable evaluation of service-
connected TMJ. 38 U.S.C.A. §1155; 38 C.F.R. §§ 4.40, 4.45,
4.150.
Specific Criteria and
Analysis of SFW
After a careful review of the record, the Board finds that a
preponderance of the evidence demonstrates that an evaluation
in excess of 10 percent for SFW is not warranted.
Paralysis of the 5th trigeminal cranial nerve is evaluated
under the provisions of DC 8205. Incomplete and moderate
paralysis warrants a 10 percent evaluation; incomplete and
severe paralysis warrants a 30 percent evaluation; complete
paralysis warrants a 50 percent evaluation. The level of
paralysis is dependent upon the relative degree of sensory
manifestation or motor loss. 38 C.F.R. § 4.124a.
The Board notes that the majority of medical examinations in
the claims file interchangeably address the residuals of SFW
with those of TMJ, since it is generally accepted that they
arose from the same in-service injury, but the Board has
carefully attempted to separate its consideration of the
distinct manifestations of TMJ with those of SFW, such as
motor loss and sensory perception. Brady, supra; Esteban,
supra. Also, distinct manifestations of SFW, previously
considered separate disabilities, have been excluded from the
current appeal. For instance, tinnitus is a residual of SFW,
but not at issue here since it already receives its own
compensable rating.
The veteran is currently evaluated at 10 percent for his SFW
(to include injury to the 5th cranial nerve). The competent
evidence of record reflects no more than a continuation of
symptomatology consistent with an incomplete and moderate,
right-sided paralysis caused by SFW. There is no appreciable
level of established motor loss, and none is alleged.
Although there is a well-documented level of sensory
manifestation of his SFW, it fails to even remotely approach
a severe level of incomplete paralysis, necessary for the
next higher evaluation of 30 percent.
At the time of his June 1996 RO hearing, the veteran was
reporting total right-sided numbness. While he is competent
to report the current severity of his symptomatology,
Espiritu, supra, the extensive amount of evidence minimizing
such severity indicates moderate paralysis and thus persuades
the Board to give little probative value to these statements.
The record as a whole shows nearly no functional loss
attributable to SFW, with inconsistent complaints of numbness
for which he has never sought treatment. For example, in
June 1994, the veteran showed no muscular paralysis; both
sides of the face were symmetrical, and he could smile
without difficulty. August 1997 cranial nerve examination
disclosed numbness in the jaw, but it affected motor loss
only to the extent he could not deviate his jaw to the right
effectively.
In August 1999, the veteran said he could hear clicking
sounds in the right jaw joint, but during that same
examination, the examiner indicated he could not hear any
such sounds. While the latter example does not address nerve
damage symptomatology, it does reflect his propensity to
exaggerate his signs or symptoms.
The requirements of DeLuca, supra, (analysis of functional
loss due to pain) are inapplicable here, since the relevant
diagnostic code does not provide for compensation based on
limitation of motion.
The Board has also considered the nature of SFW and the
requirements for, and the effect(s) of, treatment over past
periods, and the course of the recovery to date. In this
regard, the Board has carefully reviewed the medical-
industrial history of the veteran from the original in-
service combat injury that caused his service-connected
right-sided headwounds. 38 C.F.R. § 4.41.
The veteran's medical history not only substantiates against
a current increase but further supports that there has been
no discernible increase in severity since the initial grant
of entitlement to service connection for the SFW, rated as 10
percent disabling. As similarly noted above in the TMJ
analysis, there has been virtually no mention in the medical
records of SFW complaints, let alone treatment of such.
Even when he filed his claim for an increase of SFW following
hospitalization in 1977 and 1978, those records indicated
treatment for unrelated conditions. Submissions of VA
treatment throughout the 1990s are silent for complaints of
jaw problems, despite comprehensive treatment for numerous
other complaints.
The only time the issue of SFW is noticeably raised in the
record (in a medical context) is in connection with his
pending claim for an increased evaluation. Industrially,
there are references throughout the record of a long and
productive post-service career reportedly limited only by
back pain.
As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath, supra. In this
case, the Board finds no other provision upon which to assign
a higher rating.
Based upon a full review of the record, the Board finds that
the evidence is not so evenly balanced as to require
application of the benefit of the doubt in favor of the
veteran's claim. Gilbert, supra. Accordingly, the Board
finds that the criteria have not been met for an increased
evaluation of service-connected SFW. 38 U.S.C.A. §1155; 38
C.F.R. §§ 4.124a.
Extra-schedular Consideration for
Both Increased Rating Claims
In exceptional cases where evaluations provided by the Rating
Schedule are found to be inadequate, an extra-schedular
evaluation may be assigned that is commensurate with the
veteran's average earning capacity impairment due to the
service-connected disability. 38 C.F.R. § 3.321(b)(1).
Although the Board is precluded from assigning an
extra-schedular rating in the first instance, the Board is
not precluded from considering whether referral to VA
officials for proper procedural action is warranted. Floyd,
supra; see also Bagwell v. Brown, 9 Vet. App. 337 (1996);
VAOPGCPREC 6-96. The Board must only address referral under
§ 3.321(b)(1) when exceptional or unusual circumstances are
present. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In a case similar to the current appeal, the Board considered
a service-connected jaw condition under the provisions of DCs
9904 and 9905 and "granted an additional 10 [percent] rating
on an extra-schedular basis because the appellant had
demonstrated that the pain attendant to his condition had
markedly interfered with employment." Floyd, supra. The
Board has thus considered whether referral for an increased
evaluation on an extra-schedular basis is warranted for
either the TMJ or the SFW.
Neither the veteran nor the evidence has presented a
disability picture so unusual or exceptional as to render
impractical the application of the regular schedular
standards. More specifically, the evidence indicates that
neither the TMJ nor the SFW have markedly interfered with
employment or resulted in frequent hospitalizations or
inpatient care. 38 C.F.R. § 3.321(b)(1).
During several of the veteran's examinations related to the
current claims, he reported a long history of work post-
service, and the only complaints of disability affecting work
relate to an alleged back disability for which he is not
service-connected.
As noted twice already, not only is there no pattern of
frequent hospitalizations or inpatient care, but there is
virtually no record of treatment for these disabilities in
over 55 years since he was granted entitlement to service
connection for same.
Referral in this instance is not warranted because the
evidence does not indicate that these disabilities have
rendered the veteran's disability picture unusual or
exceptional, markedly interfered with employment, or required
frequent inpatient care as to render impractical the
application of regular schedular standards.
ORDER
Entitlement to an increased (compensable) evaluation for
traumatic arthritis of the temporomandibular joint is denied.
Entitlement to an evaluation in excess of 10 percent for a
shell fragment wound with injury to the 5th cranial nerve is
denied.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2001) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The Board initially notes that the issue of whether new and
material evidence has been submitted to reopen a claim of
entitlement to service connection for a low back disability
is being deferred as it is inextricably intertwined with the
claim of CUE remanded herein. The outcome of this claim
could impact the disposition of the new and material claim.
Although an unfavorable Board decision regarding the new and
material issue would not bar a claim of CUE in a prior RO
decision, see VAOPGCPREC 14-95, if it is determined on
further appellate review that CUE was made in a March 31,
1954 decision, the issue of new and material evidence to
reopen a claim of entitlement to service connection for a low
back disability is rendered moot.
Pursuant to the Board's April 1997 remand order, the RO
adjudicated the issue of whether clear and unmistakable error
(CUE) was involved in the March 31, 1954 rating decision,
which denied entitlement to service connection for a back
condition. In its April 2001 rating decision, the RO
determined that the March 31, 1954 decision did not contain
CUE.
A notice of disagreement (NOD) must simply disagree with the
agency's determination of the veteran's claim. Collaro v.
West, 136 F.3d 1304 (Fed. Cir. 1998). Special wording is not
required. 38 C.F.R. § 20.201 (2000).
The first and only submission by the veteran or his
representative subsequent to the issuance of the April 2001
rating decision regarding CUE was an informal brief dated in
August 2001. In the brief, the representative addressed the
issue of whether CUE was made in the March 31, 1954 rating
decision. The CUE arguments presented in the brief have been
construed by the Board as an NOD.
When there has been an initial RO adjudication of a claim and
an NOD has been filed as to its denial, the veteran is
entitled to an SOC, and the RO's failure to issue an SOC is a
procedural defect requiring remand. Manlincon v. West, 12
Vet. App.238 (1999); Godfrey v. Brown, 7Vet. App.398, 408-10
(1995); see also Bernard v. Brown, 4Vet. App.384 (1993).
Subsequent to the representative's brief dated in August
2001, the veteran was never provided with a statement of the
case (SOC) pertaining to the issue of CUE in the March 31,
1954 rating decision. The April 2001 supplemental statement
of the case addressing the three issues listed on the title
page also included a discussion of CUE, but this was issued
prior to the submission of any document by the veteran or his
representative that could be construed as an NOD.
Accordingly, this issue is remanded for the following:
1. The veteran has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
2. The RO should furnish the veteran an
SOC addressing the issue of CUE in the
March 31, 1954 rating decision, which
denied entitlement to service connection
for a low back condition.
The RO should also advise the veteran of
the need to timely file a substantive
appeal to the Board if he desires
appellate review.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. If not
rendered moot by a favorable finding of CUE, the deferred
issue of new and material evidence to reopen the claim of
entitlement to service connection for a low back disability
should also be returned to the Board for final appellate
review, pending a final and binding decision in that matter.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
veteran until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals